On 17 December 2018, the Supreme Court handed down judgment in Welsh Ministers v PJ in which Jenni Richards QC, Peter Mant and Stephanie David successfully represented the appellant, PJ. The case concerned Community Treatment Orders (“CTOs”), introduced in 2007 following an amendment to the Mental Health Act 1983 (“MHA”). CTOs are a means by which patients compulsorily detained in hospital can be released into the community by their Responsible Clinician (“RC”) subject to conditions supporting the continuation of any required treatment.

The question before the Supreme Court was whether a RC can impose conditions on a CTO which amount to depriving the patient of his or her liberty, within the meaning of article 5 of the European Convention on Human Rights.

In her leading judgment, Lady Hale concluded that the MHA does not give the RC a power to impose conditions which have the concrete effect of depriving a community patient of his liberty (as interpreted in Cheshire West and Chester Council v P [2014] AC 896). It was common ground that there was no express power to deprive a patient of his or her liberty in section 17B(2) of the MHA. The Supreme Court determined that there could be no such power by necessary implication – to deprive someone of his or her liberty is to interfere with a fundamental right and such rights cannot be overridden by general or ambiguous words in a statute.